We applaud President Obama’s announcement of  broad executive action to offer temporary relief from deportation to millions of undocumented immigrants, stating that the separation of families or the oppression of low-wage immigrant workers is “not who we are as Americans.”

Concurrent with the televised nationwide presidential address last night, the Department of Homeland Security (DHS) Secretary issued a series of memoranda outlining the various facets of the programs and policies which would constitute, in total, “executive action” relating to immigration matters such as:  Revising Removal Priorities, ending Secure Communities and replacing it with a New Priority Enforcement Program, expanding DACA, extending DACA to Parents of US citizens and Permanent Residents, revising parole rules, expanding Provisional Waivers to spouses and children, modernizing high-skilled business-related immigration, and more.  We link to this information above.

Additional specific information on the initiatives contained in the Executive Action taken by President Obama can be found here

IMPORTANT INFORMATION

As of January 1, 2015, E-Verify will begin disposing of E-Verify records that are over 10 years old. In order to retain case information, E-Verify employers may download and save the new “Historic Records Report.”  If you want a record of your cases that are more than 10 years old, you must download the new Historic Records Report before December 31, 2014.  The report will include all transaction records for cases more than 10 years old.  The report is only available until December 31, 2014.

NOTE – this Report will ONLY BE AVAILABLE from October 1, through December 31, 2014.  The Fact Sheet provides more information as to how to proceed to download applicable E-Verify records.

If you were not using E-Verify on or before December 31, 2004, you do not need to download the report. There will be no records to report.  Note that E-Verify will continue this practice on an annual basis.

Form I-9 Webinar on Demand | USCIS uscis.gov

“The decision to simply delay this deeply controversial and possibly unconstitutional unilateral action until after the election — instead of abandoning the idea altogether — smacks of raw politics,” House Speaker John Boehner (R-Ohio) said in a statement which is a total surprise considering the House’s refusal to do anything on immigration reform; is he being sarcastic or untruthful?!   Even members from within Obama’s own party scoffed at the decision.  Despite this,  the White House just last week assured anxious Hispanic lawmakers on Capitol Hill that President Obama will use executive action before the holiday season closes to reform U.S. immigration law, after breaking his pledge to make changes by the end of summer.  The message was delivered in a meeting Thursday with White House Chief of Staff Denis McDonough and other administration officials, including domestic policy adviser Cecilia Munoz, a key player for Obama on the issue, according to Politico.

Illinois Democratic Rep. Luis Gutierrez said Obama’s decision to “play it safe” could end up harming his good standing among many Latino voters in the midterms.  He further stated, “While we wait until November … there’s going to be another 60,000 people deported,” he said. “There is pain and suffering in the community, and there is a lot of anguish and anger.”

Other resources:

1. Latin Post
2. Los Angeles Times
3. 7 Big Items Congress Won’t Get to this Fall 

The following are excerpts from a meeting between the American Immigration Lawyer’s Association (AILA) and ICE/HSI (Homeland Security Investigations) from November 19, 2013 that represents some material changes in regulations concerning several important issues such as pre-population, how many violations per I-9 is permitted, E-Verify and new hires, and more, as follows:

Electronic I-9s

 AILA Question: In the January 2013 liaison meeting with AILA, and again in April 2013, ICE HSI indicated that pre-population of Section 1 of an electronic Form I-9 did not comply with regulations. In the April 2013 liaison meeting with AILA, USCIS confirmed that pre-population of Section 1 in an electronic Form I-9 was not acceptable, regardless of whether the company’s representative signed the translation section.  AILA has received information indicating that HSI has recently announced that it has no position on pre-population of Section 1 of an electronic I-9.  Can HSI please clarify for AILA what its current position on pre-population is? Does HSI consider pre-population acceptable under certain circumstances? What are those circumstances?

ICE Response: What may constitute “pre-population” varies substantially. In reviewing any specific pre-population practice, ICE will examine the company’s practices overall to determine
whether a violation occurred and a sanction should be imposed.

How many Notices of Inspection did HSI serve in 2013?

ICE Response: ICE served 3,100 NOIs.

Multiple penalties for single I-9

AILA Question: AILA members have reported that employers have been assessed separate fines for every error on one Form I-9. In other words, a Form I-9 with five errors will generate a fine that is five times more than a Form I-9 with one substantive error. OCAHO cases and ICE’s “Form I-9 Inspection Overview” Fact Sheet indicate that “the standard fine amount” is calculated against each Form I-9 with substantive violations, regardless of the number of substantive violations on the Form I-9. Please confirm that a form with one substantive error would generate the same fine as a form with five substantive errors in the same Form I-9 audit.

ICE Response: There can only be two violations per Form I-9: (1) a knowing hire, continuing to employ violation; and/or (2) a paperwork violation. Only one paperwork violation should be assessed per Form I-9. If more than one paperwork violation per I-9 is cited, attorneys should raise the issue with the ASAC or SAC.

Pervasive single error on I-9s: AILA Question:  We frequently work with employers who due to a training error make the same error on the Form I-9 (such as repeatedly omitting the List C issuing authority). As it is one pervasive error, it does not indicate the more pervasive problems or potential disregard for the verification process, as would employers whose forms I-9 have many different errors. Would HIS consider adjusting its penalty matrix or making some other accommodation to take into account the fact that one common mistake on multiple Forms I-9 should not lead to the same penalty as different or multiple mistakes on the same number of multiple Forms I-9?

ICE Response: ICE is considering this issue. ICE acknowledged that one pervasive error on multiple I-9s seems like a different level of violation than wide-ranging multiple errors. ICE agreed to consider ways to address this.

I-9s for owners of closely held corporations. AILA Question: The OCAHO decision in Santiago Repacking, 10 OCAHO No. 1153 (Aug. 24, 2012) held that an owner in a closely-held corporation, who also works there and draws a paycheck, does not need to have an I-9 form. Please confirm that HSI follows this decision.

ICE Response: ICE stated that it follows all OCAHO decisions.

NOI Notices

AILA Question: The current NOI notices include language that suggests that HSI will require employers to provide access to their electronic I-9 systems. Is this a current practice? If so, what have been the results of these audits? Has HSI considered any employer’s I-9s to be uniformly invalid due to non-compliance of the electronic system used, or does HSI determine whether the electronic I-9s have substantive/technical deficiencies on a case-by-case basis for each I-9?

ICE Response: In some cases ICE has asked the employer to provide a live demonstration, not just a canned demonstration. This applies to both commercially available software and in-house applications.

E-Verify Q&A

Roll-over of employer data. AILA Question: At recent meetings, USCIS has informed AILA that future releases of E-Verify would enable an employer who terminates its MOU (at least for reasons of merger or change in designated agent) to have continued access to its prior E-Verify records and allow transfer of historical data to the updated account. What is the status of this development? If an employer with a terminated MOU needs access to historical E-Verify information, what is the process for obtaining it?

USCIS Response: There is currently no mechanism for an employer to continue to have access to E-Verify data after termination of an MOU.  Once an account is closed, all access to the account and its associated records are terminated. USCIS is developing a method and/or feature for the retention of historical E-Verify data, but there is no tentative date set for this enhancement. At this time, the best workaround to preserve E-Verify records is for the employer and E-Verify Employer Agent to create and retain a complete user audit report for themselves and their clients. From within the Administrator’s functions, an employer can create an Excel spreadsheet with all of the information.  Note that this report would not relieve the employer’s responsibility under the MOU for either copying the E-Verify receipt number on the Form I-9 or attaching the E-Verify record to the form.

AILA Question: What if an electronic I-9 vendor or Employer Agent goes out of business: can an employer have direct access to the information?

USCIS Response: Under data privacy rules, E-Verify is required to “archive” old data, which essentially means that the data is no longer available. The protocol anticipates archiving at the ten year anniversary of data collection, but so far, only pre-1996 data is subject to immediate archive.  Eventually all E-Verify data will be subject to archiving rules. Verification recommends as a best practice that employers print-out and retain the E-Verify records.

E-Verify and Re-hires

AILA Question: It appears that Verification recognizes that an E-Verify query is not always necessarily a rehire situation where the employer is allowed under I-9 regulations at 8 CFR §274a.2(c)(1)(i) to continue to rely on the re-hired employee’s original I-9.  The following guidance is posted in E-Verify FAQs:

Do I need to create a case in E-Verify if my company rehires an employee?

If you rehire a former employee within three years of his or her previous hire date, you may rely on the information on his or her previous Form I-9.  If you rehire an employee for whom you never created an E-Verify case and the employee’s and the employee’s previous Form I-9 lists an expired identity document (List B), then you may either:

–  Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify or

–  Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify

See the Handbook for Employers: Instructions for Completing Form I-9 (M-274) for more   information on rehires.  The above guidance, however, does not address the proper way for an employer to treat employees in the most common rehire circumstances – (1) where the rehired employee was not subject to E-Verify at the time of the original hire; and (2) where a rehired employee was previously run through E-Verify and does NOT have an expired identity document. The current guidance suggests, but does not state explicitly, that an E-Verify query based on the rehire date is required in situation (1) and that an employer should not re-query the rehired employee in (2). It was suggested that USCIS provide further clarification to the E-Verify rules for rehired employees and suggested the following amendment to the FAQ as follows:

An employer may rely on previous E-Verify queries for rehired employees in certain circumstances.  If you rehire a former employee within three years of his or her previous hire date, you may rely on the original Form I-9 as long as the work authorization (List C) documentation originally presented by the employee is still valid. If the rehire date is more than three years from completion of the original I-9, or if the employee’s work authorization has since expired, you must complete a new I-9 and run a new E-Verify query using the rehire date as the date of hire.  For purposes of E-Verify, where the employer can rely on the original I-9 and the rehired employee was subject to an earlier E-Verify query, you may continue to rely on the earlier query. If the rehired employee was not previously subject to an E-Verify query and the employee’s identity document is still valid, you may run the E-Verify query based on the data in the original I-9, but using the rehire date as the E-Verify hire date. If, however, the rehired employee’s identity document (List B) has expired, you cannot run an E-Verify query as the system will not accept expired documents. In that case, then you may either:

– Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify or

– Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify,  using the rehire date as the E-Verify hire date.

USCIS Response: USCIS updated the rehire section in the newest version of the E-Verify user manual and now provides the following guidance:

If you never created a case in E-Verify for the employee, you must have the employee complete a new Form I-9 and create a case in E-Verify. If you previously created an E-Verify case, but did not receive an employment authorized result, you must have the employee complete a new Form I-9 and create a case in E-Verify.  If you previously created a case in E-Verify for the rehired employee and received an employment authorized result, complete Section 3 of the employee’s previous Form I-9 and do not create a new case for the employee in E-Verify. Alternatively, you may choose to complete a new Form I-9 and create a case for the employee in E-Verify.  Employers are reminded that if you rehire your employee within three years of the date that the initial Form I-9 was completed, you may complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9. If more than three years has elapsed since the initial Form I-9 was completed, employers must complete a new Form I-9 for a rehired employee and create a case in E-Verify for the rehired employee.

That’s all for now.  We will continue to update as announcements are made concerning new interpretations concerning I-9/E-Verify compliance matters.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.  Refer to AC 21 12/27/2005 Aytes Memo for details.

Proposal to Enhance Opportunities for Highly-Skilled Workers: H-1B1 (Chile and Singapore) and E-3

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer.

• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.  We will keep you posted on next steps when this actually becomes effective.

The DHS Press Release

Though the notice is preliminary and subject to change, it offers over half a million DACA recipients vital information about what they should do to prepare for the road ahead.  Refer here

We are hearing in the field that they are if the employer-employee relationship can be evidenced through an independent Board of Directors that controls the terms of employment of the entrepreneur and can be convincingly and thoroughly documented, along with appropriate corporate formation documents and a viable business plan. Keeping this in mind when developing the structure of a start-up is exceedingly important for immigration purposes.

Here are USCIS FAQ’s on the subject.

Last October, CA was the 10th state to sign into law driver’s “permits” for undocumented immigrants. In response to an email concerning this topic and whether this would be an acceptable List B document for I-9 purposes, the OSC posted a Technical Assistance letter response a few days ago on its website.

It has been my understanding that the permits will contain language that states that they are not to be used for “federal official purposes,” and will contain a notice on the card that reads: “This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits. ”

The matter, however, is timely addressed and is a reminder to examine driver’s licenses more closely and read the fine print on the front and back. Here’s a link to the letter that was posted on Feb. 7th. You’ll see it posted under the heading “Fiscal Year 2014.”

Also, here’s an article with an example of the card being used in Illinois stating “not valid for identification” indicated  very clearly at the top of the card.

If any of our readers more recently have run across one of these cards presented during the I-9 process, please share with us.

If you Previously had an H-1B for Less than 6 Years

Pursuant to § 212(g)7) of the The Act, if you had an H-1B in the past and were in the USA for less than 6 years, you may be eligible to recoup the time that is remaining on the 6-year maximum period of stay to accept employment with a new employer – without being counted against the cap.  An example of this would be someone who works for 3 years in H-1B classification and decides to go back to school on an F-1 student visa.  This individual would be eligible to apply for an H-1B for the remaining 3 years at any time of the year.

If you are abroad for at least one year, you have the choice to either apply for a “new” cap H-1B  for a full 6-year period, or take advantage of the remainder option if you previously had an H-1B.

H-1B 7^th Year Extensions – How This Works

If you are the beneficiary of a labor certification or an I-140 petition that was filed 1 year prior to your 6^th year in H-1B status, pursuant to §106 of AC21, you are permitted to file for a 7^th year extension.  You are also permitted, according to §104(c) of AC21, to apply for a 3-year extension of your H-1B when you have an approved I-140 petition and are unable to move forward with filing your permanent residency case due to employment-based immigrant visa country limits (referred to as retrogression).

If you are in the US and out of status due to a layoff, or are abroad, you are entitled to a 7^th year extension of your H-1B if your labor certification or I-140 petition was filed before your 6^th year in H-1B status with either the sponsoring employer, or with a new employer.  You will more than likely be required to consular process your case in these scenarios.

It is recommended that you seek the advice of a skilled immigration professional with the above cases as they are complex in nature.

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There are certain classes of non-profit employers who are exempt from the H-1B cap. The exemption from the cap only applies to institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution.  Let’s discuss this.

 Institutions of higher education: Under the definition, an institution of higher education is one which:

• admits students who have completed secondary education;
• is licensed to provide education beyond secondary school;
• provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
• is a public or nonprofit institution; and
• is accredited or has been granted pre-accreditation status by a recognized accrediting agency.

What does it mean to be related or affiliated to a higher education institution nonprofit entity?

The USCIS states that it is sufficient that a nonprofit entity is related or affiliated to an institution of higher education through shared ownership, control or be somehow affiliated to the higher education institution as a member, branch or subsidiary.

This narrow definition makes the types of non-profits that qualify for this exemption few and far between.  For instance, non-profit service, community, policy and arts organizations would not qualify for the exemption from the H-1B cap. Unless the non-profit employer is primarily devoted to research, or is formally affiliated with a university, it will not qualify as a cap-exempt H1B petitioner. Public secondary schools do not qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university. However, the exemption does cover certain professionals employed by a for-profit entity but but does when working at an exempt location, as long as the work continues to serve the core mission of the exempt institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.

Nonprofit Research Organizations | Government Research Organizations:  Nonprofit research organizations or governmental research organizations, are defined in 8 CFR 214.2(h)(19)(iii)(C), as follows:

•   A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.
•   A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.

Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities.  

Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

Conclusion

It should be noted that all of the criteria above must be met in order for an institution or an organization to qualify for a cap-exempt status for H-1B purposes. Such institutions and organizations can indicate that their H1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H1B Data Collection and Filing Fee Exemption Supplement. Bear in mind that an employer or a foreign national who wishes to seek H-1B status under a cap-exempt petition must verify that they qualify for the cap exemption under one of the three categories above. It is recommended that you work with an immigration practitioner that understands this casework as the analysis is often complex.  If you’d like to become a client of our office, please contact us at info@immigrationcompliancegroup.com or call 562 612-3996.